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Equitable Servitude
Practical Law Glossary Item 6-581-7932 (Approx. 3 pages)
Glossary
Equitable Servitude
A non-possessory interest in land that allows the owner of the benefitted property to use or restrict the use of the burdened property. Equitable servitudes operate similar to a covenant running with the land. Equitable servitudes differ from covenants in that:
- They are enforceable by injunction, while a real covenant is remedied by money damages.
- No horizontal or vertical privity is required for a servitude to run with the land.
- Servitudes are ownership interests in land, while real covenants are promises.
- The elements for a servitude to run with the land are:
- a writing;
- an intent to bind subsequent owners when the servitude was created;
- the servitude "touches and concerns" the land; and
- notice of the servitude.
An affirmative servitude allows the benefitting owner to use the burdened property in a specified manner and must satisfy the elements above to bind successors.
A negative servitude allows the benefitting owner to restrict the use of the burdened property. A negative servitude may be implied without a writing when successors should have known of the restriction, even without notice. This typically occurs when a development is built under a common plan or scheme.